ABID AZIZ SHEIKH, J.---- Through this Constitutional petition, the petitioner has challenged the impugned judgment and decree dated 02.02.2019, passed by the learned District Judge, T.T. Singh, whereby the judgment and decree dated 11.09.2018, passed by the learned Guardian Judge, was set aside and guardian petition filed by respondent No.3, was allowed.
2. Relevant facts are that marriage of the petitioner with respondent No.3, was solemnized on 08.11.2009 and during the wedlock period, minor daug hter, namely , Niba Noor (minor) was born on 09.12.201 1. However , unfortunately the matrimonial relations ended in divorce on 07.12.2013. Consequently , the petitioner along with minor daughter left the house of respondent No.3. Subsequently , the respondent No.3, contracted second marriage on 31.01.2015 and the petitioner also. contracted second marriage with one Javed Iqbal Saqi, on 28.10.2016. From the second wedlock, the respondent No.3, has two minor daughters born on 03.08.2017 and 11.11.2018, respectively . However , there is no child from the second marriage of the petitioner .
3. The petitioner along with minor daughter filed suit for maintenance allowance; on the other hand, the respondent No.3, filed a custody petition on 07.06.2017, mainly on the ground that the petitioner has contracted second marriage and her husband is not in the prohibited degree with the minor . The learned Judge Guardian Court, dismissed the guardian petition through order dated 11.09.2018 and prescribed the visitation schedule for respondent No.3 for meeting with minor . The appeal filed by respondent No.3, was however allowed by the learned appellate court on 02.02.2019, hence this Constitutional petition.
4. Learned counsel for the petitioner submits that no-doubt the petitioner has contracted second marriage but it is in the welfare of the minor daughter , if her custody be remained with the petitioner mother , rather handing it over to the father , who has also contracted second marriage and has two daughters from said marriage. He further submits that not only the minor has been properly looked after but she is also the only child with the petitioner and she has no other children from her second marriage.
5. Learned counsel for respondent No.3, on the other hand, submits that the petitioner has contracted second marriage and her husband being not in the prohibited degree with minor , the petitioner is not entitled for the custody of the minor in view of Paras 352 and 354 of the Muhammadan Law ..
6. Arguments heard. Record perused. It is admitted position on record that after divorce on 07.12.2013, the petitioner contracted second marriage on 28-2-2016 with one Javed Iqbal Saqi but there are no other children born out from said second marriage and the minor is the only child living with the petitioner . On the other hand, it is also not disputed that respondent No.3, has contracted second marriage on 31.01.2015, and from that marriage he has two minor daughters. No doubt under Para 352 of the Muhammadan Law, the mother is entitled for the custody of her female child until she attains the age of puberty unless she marriages with second husband not in the prohibited degree. However , this is not an absolute Rule but it may be departe d from, if there are exceptional circumstances, for the welfare of the minor . It is settled principle of law that mere fact of remarriage of the mother would not ipso facto disentitle her from retaining custody of the minor child and hand her over to the father , when it is not otherwise, in the welfare of minor . Reliance is placed on Shabana Naz v. Muhammad Saleem (2014 SCMR 343), Shaishta Naz v. Naeem Ahmed (2004 SCMR 990), Mst. Jannatan v. Ch. Abdul Hamid ADSJ and 2 others (1984 CLC 345), Shahbaz Ahmed v. Addl: District Judge and others (2014 YLR 1374 ), Zainab Bibi v.
Muhammad Ashraf and another (2014 CLC 1299 ), Mst. Zarina Bibi v. Muhammad Ashraf and another (PLD 2015 Lah. 253), Mst. Rabiah Bibi v. Abdul Qadir and another (2016 CLC 1460 ), Mst. Hifsa Naseer v.
Additional District Judge, and another (PLD 2017 Lah. 153) and Faisal Mushtaq v. Sumaira Safdar and another (2018 MLA 862).
7. The moot question is whether those exceptional circumstances for the welfare of the minor are available in the present case to depart from the rule or not. In this context, there is no dispute that minor daughter since her birth on 09.11.201 1, is living with her mother till date and the custody of the minor was never remained with respondent father . Not only there is no substitute to real mother but in present case, the minor is also brought-up by the mother , who understands the requirements of her daughter till her age of puberty . The minor daughter since her birth has also developed bonding with the mother and to separate her from her real mother at this tender age and force her to live with step mother (who has her B own two daughters) in the house of her father, will not only be harsh, unjust and traumatize her personality but will also disturb her mentally .
8. The minor Niba Noor , who is almost 8 years of age and studying in Class-III, herself, appeared and categorically stated that she wants to live with her mother . The minor apparently is intelligent child and there is no reason not to respect her wish for living with her real mother . In this regard, reliance is placed on Ch. Nazir Ahmad v. Additional District Judge and others (1988 SCMR 1359 ).
9. As per Exh-P/5,. Mark "A" to Mark 'D' the minor daughter is also getting 'her education in Enlighten School System T.T. Singh. Therefore, it cannot be said that the minor is not properly looked after by the petitioner . The perusal of orders passed by two courts below also show that the learned Judge Guardian Court discussed each and every aspects of the matter to conclude that there are exceptional circumstances present for retaining the custody of the minor daughter with the mother , whereas learned Appellate Court on the other hand, merely relied up the principle laid down in paras. 352 and 354 of the Muhammadan Law by Mulla and without discussing the exceptional circumstances narrated abov e or even considering that respondent No.3, himself contracted second marriage and has two minor daughters from the second marriage, set aside the order passed by the learned Guardian Court.
10. So far as the financial status of respondent No.3 to maintain -the minor daughter is concerned, the respondent No.3, himself filed application with the Executing Court on 18.03.2016 (Exh.R-3), whereby he admitted that he has no business or job, rather he is living with his other family members and doing cultivation on small piece of land.
This fact is also admitted by learned counsel for respondent No.3, during the course of arguments of this petition.
The above financial status of respondent No.3, does not show that he will be in a comfortable position to give same standard of livelihood and education to the minor , what she is presently getting while residing with her mother , who has no other child to look after from the second marriage.
11. At this juncture, it is relevant to observe that order relating to custody of child is by its very nature not final but is interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child. With this legal position notwithstan ding the fact that above exceptional circumstances exist to depart from paras 352 and 354 of the Muhammadan Law, at present tender age of minor , however, this fact cannot be ignored that petitioner has married to the person, who does not fall in the prohibited degree to the Ward. Therefore once the minor daughter attains the age of puberty , the respondent No.3/father may again approach Guardian Court for the custody of the minor and the guardian Court may seek the wish of the minor daughter and also examine, if exceptional circumstances still exist for retaining of custody of the minor daughter with the petitioner . It is also appropriate that in the meanwhile, the respondent No.3/father and his family from second wife should also be allowed to have frequent meetings with the minor , so that not only minor be superv ised by her real father but some bonding may also be developed between them with passage of time.
12. In view of above discussion, the writ petition is allowed and the impugned judgment dated 02.02.2019, being result of misreading and non-reading of evidence and suffers from material irregularity , is set aside and the judgment passed by the learned Guardian Judge, dated 11.09.2018, is restored. However , the schedule of meeting of respondent No.3, with the minor daughter is amended as under:- SCHEDULE of MEETING The respondent No.3/father will be allow ed to meet his minor (daughter) on second and last Saturday of every month in his house from 5.00 P.M. till 03.00 P.M. next day (Sunday). The respondent No.3 / father will be bound to return the custody of minor daughter to the petitioner (mother), after the aforesaid time period. Respondent No.3 / father will also be allowed custody of minor daughter in summer vacations for 3 weeks w.e.f. last week of July till 2nd week of August and during winter vacation w.e.f. 25th December to 31 December , every year. Likewise, on every 2nd day of Eid ul Fitar and Eid ul Azha for whole day. The respondent No.3, will be bound to return the minor after completing the above mentioned schedule.